Letter to the Chairman from Lord Bassam
of Brighton, Under-Secretary of State, HomeOffice

I was very grateful to your Committee for their swift
consideration of the Regulation of Investigatory Powers Bill and
for the letter of 24 May sent to me in time to inform Second Reading
debate on 25 May.

As I indicated at Second Reading, I did appreciate
the force of the Committee's observations as recorded in that
letter. I have tabled some amendments as a result, though these
amendments do not do exactly what the Committee recommends.
The purpose of this letter is to explain why. I should add that
I appreciate that your initial letter was only an early report
of the provisional findings of the Committee. Whether we have
done enough to meet your concerns is something that I intend to
revisit in the context of your final report on this Bill.

The Committee raised two central concerns over this
Bill. The first related to the four provisions in the Bill which
authorise surveillance or other action for specified purposes
but allow the list of purposes to be extended by subordinate legislation.
These are in Clauses 21(2)(h), 27(3)(g), 28(3)(g) and 65(3). The
Committee suggested that all these powers should be subject to
the affirmative resolution procedure and that the limitation on
these powers as contained in the Human Rights Act should somehow
be expressed on the face of the Bill.

I have tabled amendments to ensure that all four
powers are to be subject to the affirmative resolution procedure.
These amendments should be moved in Committee and will, I hope,
have the support of all sides. In defence of our initial decision
not to use the affirmative resolution procedure, I should explain
that we had considered that the limitation of the Human Rights
Act would be such that the scope of this subordinate legislation
would not be as wide as it might seem at first sight. The scope
is specifically limited to any gap between the purposes listed
in the Bill and the range of purposes permitted under the Convention.
It was because this gap seemed to us to be relatively small that
we opted for the negative resolution procedure. But I see the
weight of your arguments and so have tabled amendments in response.

The limitation of the Human Rights Act mentioned
above is germane to the point you had in relation to these four
elements of subordinate legislation. The Committee considered
that the scope of this subordinate legislation should be explicitly
limited on the face of the Bill to what would be permitted by
the Convention. I have absolutely no difficulty with the reasoning
behind this recommendation. In practice, however, it has not been
easy to accommodate and, I suggest, is not strictly necessary.
I confess that our Home Office Memorandum could have been a little
clearer on this point. As the Committee points out, it is certainly
intended that any use of the subordinate legislation should be
limited in practice by the Human Rights Act.

But, more significantly, this is a limitation in
law as well as practice. When section 6 Human Rights Act comes
into force, it will not be possible, as a matter of law, for the
Secretary of State to make an order that is incompatible with
any of the Convention rights. Therefore, I suggest, to repeat
the limitation on the face of the Bill is unnecessary.

The second group of powers addressed in the provisional
conclusions of your Committee addressed the powers at Clause 24(1)(f),
Clause 29(4) and 39(1). In each case, the Committee suggested
that where the Government already knew of public authorities that
would be named in these orders, they should be named on the face
of the Bill. We wholly accept this recommendation. You will see
that we have tabled a new Schedule to the Bill listing those public
authorities who are to be able to conduct directed surveillance
or use covert sources. We intend to move this new Schedule at
Committee and hope that it will have the support of all sides.
Compiling such a list has involved a great deal of work across
Whitehall and the need to do this has been one of the great benefits
of the Human Rights Act. For the first time, and in one place,
it will be possible to identify the various organs of state with
the power to impinge on the right to privacy. This list has taken
a little while to collate but we are now happy to name these authorities
on the face of the Bill.

In respect of the powers at Clauses 24 and 39, the
Government has not yet decided on any public authorities who should
be able to use the powers in addition to those named on the face
of the Bill. If the new Schedule is agreed at Committee, therefore,
or the public authorities using all the powers in question will
be named on the face of the Bill.

That was the first part of the Committee's recommendation
in relation to this second group of powers. The Committee also
recommended that any addition to the public authorities listed
in the Bill should be by means of affirmative resolution. This
is already provided for at Clause 39 and the amendments including
the new Schedule would provide for this in relation to new public
authorities using the powers at Clause 29.

The final recommendation of the Committee in relation
to this second group of amendments was that any addition to the
list of public authorities should be limited to those made necessary
"because structures within an authority may change, making
it necessary to update or amend the order". This justification,
provided in the Home Office Memorandum, was for the slightly different
power at Clause 29(1) of the Bill to prescribe the individuals
within public authorities who can authorise directed surveillance
or the conduct/use of covert human intelligence sources. In relation
to the three aspects of subordinate legislation at issue here,
I do not think this limitation would be strictly appropriate.
As I have said, a great deal of work has taken place across Whitehall
to establish the list of public authorities which now is tabled
as a new Schedule for the Bill. However, it remains possible that
the list may not be exhaustive. It is a widely accepted fact that
the introduction of the Human Rights Act on 2 October will have
implications, many unknown, across the public service. I fear
that it remains possible that some investigative body will find
that it needs to come in under the regime of the RIP Bill at some
stage in the future. This could be for a variety of reasons, that
technology has developed so that operations that previously did
not invade privacy to a significant extent do so in the future,
that case law revolves in relation either to the concept of surveillance,
the nature of public authorities or the invasion of privacy more
generally, or simply that the authority in question had not fully
realised the impact of the Human Rights Act until it came into
force. To add public authorities to the list would be a significant
development, hence the need for affirmative resolution procedure
to add public authorities to those listed under the Bill, but
to constrain the use of the power still further seems a step too
far.

I am glad that, due to the prompt action of your
Committee, we have been able to table some amendments to improve
this Bill. I hope those amendments will be welcomed by all sides
at Committee in this House and I believe they meet the spirit
of the concerns expressed by your Committee. I have to set out
in this letter, at some length, the reasons why we have not felt
able to do precisely what your Committee suggested. But I fully
intend to revisit these reasons in the light of your final report
and, if there are any lingering of the Committee at that stage,
I should be very pleased to discuss them with you or the Committee
generally.